Jacob T. Penrod
excerpted from: Jacob T. Penrod, Brown V. Philip
Morris, Inc., 250 F.3d 789 (3rd Cir. 2001). , 8 Washington and Lee Race
and Ethnic Ancestry Law Journal 131 (Spring, 2002) (101 Footnotes)
Plaintiffs (the "Black Smokers")  brought this class
action suit on behalf of all African-Americans who had purchased or
consumed mentholated tobacco products since 1954. The Black Smokers sued
various tobacco companies, claiming that these companies discriminated
against the African- American public by targeting them with
advertisements for mentholated tobacco products. The Black Smokers claim
that the tobacco companies knowingly harmed the African-American
community by deceiving them into believing that menthol cigarettes are
healthier than non-mentholated cigarettes. Furthermore, the plaintiffs
contended, and the defendants did not dispute, that mentholated tobacco
products actually do pose a greater health risk than non- mentholated
products. The Black Smokers maintained that the target advertising
caused harmful disparities in the smoking population. According to the
Black Smokers, African-Americans, who make up 10.3% of the U.S.
population, constitute 31% of all mentholated tobacco users. The Black
Smokers also stated that the tobacco companies did not advertise these
same messages to white consumers. Based on the above facts, the
plaintiffs sued the defendant tobacco companies in the United States
District Court for the Eastern District of Pennsylvania on October 19,
The Black Smokers based their claims on several theories of law.
First, they claimed that defendants violated the civil rights statutes
codified at 42 U.S.C. §§ 1981,1982, and 1985(3) by infringing on
African- Americans' right to contract for and to purchase and hold,
personal property on the same grounds as "white" Americans.
Second, they argued that the tobacco companies targeted
African-Americans with defective products and that defendants'
advertisements constituted express warranties containing false and
misleading statements. Third, Black Smokers claimed that the defendants
are federal actors, who violated a constitutional right under Bivens v.
Six Unknown Federal Narcotics Agents, and that the defendants' target
advertising violated the Fifth Amendment. Fourth and finally, the Black
Smokers claimed the tobacco companies are state actors, who violated the
full and equal benefit clause, 42 U.S.C. § 1983, and the Fourteenth
The District Court granted defendants' motion to dismiss under Fed.
R. Civ. P. 12(b)(6). Plaintiff appealed to the United States Court of
Appeals for the Third Circuit.
. "Black Smokers" is a term used by plaintiffs to
describe themselves. The court adopts it in its opinion.